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Criminal justice system should not separate us

Inclusiveness and respect are society&rsquo;s most effective crime prevention measures.

Kingston Penitentiary. Iroquois leader Joseph Brant said: “In the government you call civilized, the happiness of the people is constantly sacrificed . . . hence your dungeons and prisons. I will not enlarge on an idea so singular in civilized life. Among us we have no prisons.” (Lars Hagberg / THE CANADIAN PRESS)

By Reid Rusonik

Fri., July 6, 2012

Given the current federal government’s seeming obsession with jailing and deporting and criminalizing Canadians, one would be forgiven for believing that our criminal justice system is for the purpose of separating us from one another. It is not. It never has been. While the trappings of our criminal justice system are largely modelled on foreign examples — primarily the British — its original purpose for the founding peoples of this country was not to separate us, but to help us debate and deliberate upon ways to live together.

The Huron were shocked by the division between rich and poor among the Europeans they first encountered and the punitive laws they employed to maintain the division. A society that did not look after its own suggested to the Huron “unintelligent” and “ill-balanced” people.

The Conservatives will quite properly urge us this year to remember the role of the Mohawk Six Nations in defeating the Americans in the War of 1812, but we will not hear these words of their great leader, Joseph Brant, repeated: “In the government you call civilized, the happiness of the people is constantly sacrificed . . . hence your dungeons and prisons. I will not enlarge on an idea so singular in civilized life. Among us we have no prisons.”

There isn’t even a Cree word for justice as we use the term. The closet equivalent is the word for talking: talking to resolve conflicts and build sustainable relationships. Controlling crime is merely a happy byproduct.

The First Nations understood what we ignore: The criminal justice system is not an effective way to prevent crime. In fact, it has absolutely no tools for the purpose. Principles like general deterrence are paid lip-service in sentencing, but no one can seriously believe they work. In the same way pickpockets of the Victorian era in England liked to work in the crowds that had assembled to watch the public hangings of other pickpockets, someone with nothing to lose who turns to drug-dealing, for example, is not scared out of doing so by the multi-year jail sentences imposed on others for committing the offence.

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Our native peoples recognized instead that inclusiveness, respect for the fundamental worth of every human being and sharing were a society’s true effective crime prevention measures. If we want to reduce crime, we once again have to address the root causes of crime and not expect the courts to accomplish the goal with false principles.

The criminal justice system, as its name implies, should be left more to establishing and maintaining standards for dealing justly with our most serious transgressions against one another: citizen against citizen, and state against citizen.

This is art, not science. It is not about efficiency or speed. It is not about achieving some other goal. It is the goal. Done well, it makes us believe we live in a society where we will be treated patiently, fairly and compassionately, a society worth committing to and defending, and thus a society with fewer criminal transgressions in the first place.

If our courts aren’t working fast enough, it’s because we are expecting too much of them. The provincial government’s recent attempt to speed-up the processing of cases was called “Justice on Target,” completely missing the point that the only target for the justice system can be justice itself. The problem is we’re trying to do too many trials, instead of doing fewer properly. Worse still, we’re doing far too many guilty pleas that ignore the Charter violations involved in the cases and we’re doing them far too quickly to properly consider the individual circumstances of the accused.

We must take the pressure off the criminal justice system to work with reckless haste by reducing the number of society’s problems we foist upon it by defining them as criminal. Drug abuse is the perfect and most significant example. It is a health problem and not a product of criminal impulse. Drug dealing only exists because we make drug abuse a crime instead of treating it as a health problem and as a symptom of a wider social malaise.

More than half my practice as a criminal lawyer is made up of defending persons either charged with drug offences or with offences which are a direct result of either being involved in the drug trade or having to pay the exorbitant prices making certain drugs illegal engenders. Decriminalization of all currently illicit drugs would, in and of itself, take the pressures off the criminal justice system that risk bringing it into disrepute as some kind of massive centrifuge for separating Canadians. The system does not owe me or anyone else involved in it a living.

We do, however, owe a duty to the system to not allow anyone to rush us in our work, to be intellectually critical of the changes that are being thrust upon us, and to ensure these changes respect the Charter. And we owe it to Canadians as never before to be patient, fair and compassionate so we help bring the country together, not set us against and separate us from one another.

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